End user license agreement for the use of the USM App
Version: February 2022
This end user license agreement (hereinafter referred to as "EULA") for the use of the USM application (hereinafter referred to as the "App") governs the contractual relationship between USM U. Schärer Söhne AG, Münsingen, Switzerland, as provider of the App (referred to as "USM" or "we") and you as user of the App (hereinafter referred to as the "User" or "you").
The use of the App is free of charge and requires that you agree to the following terms and conditions of this EULA before installing the App. Please read the EULA carefully before downloading, registering for or using the App. By registering for or using the App, you are agreeing to be bound by the terms and conditions of the EULA as amended from time to time. Without your agreement to the EULA, you are not allowed to use the App. Any terms and conditions of the User are hereby explicitly excluded.
1. App Store
(a) The App is currently offered for iOS and Android. The operating systems currently supported by the App are iPhone iOS from iOS 13 and higher, as well as Android 7 and higher. The App can be downloaded free of charge from the Apple App Store and the Google Play Store (hereinafter referred to as the "App Store" and the providers of each App Store as the "App Store Operator").
(b) The App Store Operator is not a contractual partner of the User with regard to the App or its content. USM and the User acknowledge and agree that the App Store Operator and its subsidiaries shall be deemed as third-party beneficiary with the right to enforce this EULA against the User to the extent permitted by law.
2. Purpose and functionalities of the App
(a) The App allows Users with a User Account (see section 3) to use their own device, on which the App is installed ("Mobile Device"), as electronic key via Bluetooth to operate lockers integrated in USM products or in products distributed by designated partners of USM (hereinafter referred to as "App Product").
(b) The App provides for two different User levels that entail different rights and functions:
(i) By default, the App serves the User as an electronic key to open and close App Products in the Public Locker Mode (see section 2(c)(i)) by using the App installed on his/her own Mobile Device via Bluetooth.
(ii) Users have the option to additionally register in the App as Power User by clicking on the corresponding checkbox during the registration process and entering the required supplementary data (full name and address). Subsequently, a specific App Product can be assigned to the Power User by using a corresponding physical administrator card ("Admin Card") to physically validate such allocation. The Admin Card is not subject to this EULA and can be purchased with the App Product from USM or a designated USM partner. The Admin Card also serves as emergency key and allows any person in possession of the Admin Card to open the App Product at any time without using the App. The registration as Power User in the App and the corresponding physical validation of such Power User with the Admin Card is a prerequisite for activating the Personal Locker Mode (see section 2(c)(ii)) and the Shared Locker Mode (see section 2(c)(iii)). Power User may open any assigned App Product via the corresponding function in the App called "Open the Locker". Power User may also transfer his/her rights to another Power User that is identified by his/her email-address. Power User is responsible to independently carry out updates and upgrades of the software contained in the App Product according to section 5(e). Power User may further carry out analyses regarding the use of the App Products, access log-entries of the App Product and in this way see when and with which device the App Product was opened and closed.
(c) The App provides for different operating modes of the App Product:
(i) In the Public Locker Mode, any User may lock an App Product with his/her User Account via the App on his/her Mobile Device (see section 3), which can subsequently only be opened using the same User Account.
(ii) In the Personal Locker Mode, the App Product can only be opened and closed with one designated User Account. It is the Power User that designates a specific User Account to a specific App Product (the Grant) by sending a Grant invitation to such User’s email address via the App. Such Grant can also be withdrawn by the Power User at any time.
(iii) In the Shared Locker Mode, the User that has previously received a Grant (see section 2(c)(ii)) for a specific App Product has the possibility to share his/her access to such App Product with other User Accounts (the Share) by sending a Share invitation to such Users’ email address(es) via the App. Such App Product can subsequently be opened and closed by using any such designated User Account. The Share can be withdrawn by the User who shared the Share invitation at any time.
(iv) In any operating mode under sections 2(c)(i)-2(c)(iii), the App Product can always be opened with the respective physical Admin Card at any time (e.g. to open the App Product if the respective User Account cannot be accessed).
3. Registration process, contract conclusion and rights of use
The use of the App requires that the User creates a User account subject to the terms and conditions of this EULA ("User Account"):
(a) After downloading the App, you will be required to indicate your preferred language. You will then be required to accept the terms and conditions of this EULA and to confirm that you have read our privacy notice [https://www.usm.com/en/office/legals/terms] by tapping on "Confirm". You are then required to enter your email address and to tap on "Create account". After submitting the registration form, an email with a confirmation link will be sent to the email address provided. The User is required to validate the email address by clicking on the confirmation link. By clicking on the confirmation link the User is redirected to the website https://usmmodularfurniture.usm.com to choose a password for the account and to submit the password by tapping on "Confirm new password". The submission of the User’s password ("Confirm new password") shall be deemed to be an application for the conclusion of a contract between the User and USM. Upon activation of the User Account by USM, the contract between USM and the User is concluded. USM decides at its own discretion whether to activate an account; the User has no right to the User Account be activated.
(b) Users may register for the App and use the App only under the condition that the User is of legal age (18 years or older). If the User does not fulfil this condition, he/she requires the consent of his/her parents or legal guardians respectively.
(c) The User may only install the App on his/her own Mobile Device that is lawfully under his/her control and possession.
4. Intellectual property rights, license and usage restrictions
4.1. Intellectual property rights
The App and its components are copyright protected. The names, trademarks and logos that appear on the App and all rights (especially copyrights, designs, trademarks, patents, knowhow or any other related rights, whether registered or not and regardless where they exist in the world) related to App and software, texts, images, videos, names, logos and other signs as well as data and information, all before mentioned other than those provided by the User, which are available or become available in the course of time through the App, belong exclusively to USM or USM designated partners. USM reserves all rights in and to the App not expressively granted to the User under this EULA.
4.2. License
For the use of the App, USM grants the User a non-exclusive, non-transferable, non-sublicensable, limited to the duration of this EULA, revocable and royalty-free license in order to download the App, to install the App on a mobile device in the permanent possession of the User, and to use the App for the sole purpose of the App as described in section 2. The license is granted under the resolutive condition that the User complies with this EULA. In the event of a breach of this EULA by the User, the license right for the App and its content expires without further notice.
4.3. Usage restrictions
(a) The App may be used by any lawful and under this EULA authorized User for any lawful personal private or business purposes provided that the App is used (i) in relation to App Products as described in section 2 and (ii) in accordance with this EULA and applicable law; in case of conflicts between the EULA and the compulsory applicable law the later shall prevail.
(b) The User is prohibited from using automated systems and/or programs that access the App in such a way that more requests are directed to USM's server or servers of USM designated partners or if applicable, any client server, as the case may be, within a given period of time than a human being could reasonably produce within the same period of time using a publicly available, unmodified standard web browser.
(c) Except as provided under this EULA, the User may not distribute or make the App available over a network where it could be used by multiple devices at the same time. It is not permitted to allow third parties to use the App against payment or free of charge or to publish, license, sell or otherwise commercially exploit the App. The granting of rights to the App, including leasing out and renting, is not permitted. The User may not redistribute or publish the App. If the User sells or transmits his/her mobile device in any other form, he/she must remove the App from the device before doing so. Except as permitted by this EULA or any compulsory applicable law, the User may not copy, modify, adapt, translate, decompile, reverse-engineer, disassemble, attempt to derive the source code of or create derivative works of the App, any updates, any upgrades or any part thereof.
5. User obligations
(a) By completing the registration of the User Account, the User confirms the accuracy and completeness of the information entered in the App. The User is obliged to keep this information up to date on an ongoing basis.
(b) The User is responsible for the confidential handling of his/her access data and assumes all consequences that may result from their misuse. In particular, the User must keep his/her access data secret and carefully protect access to his/her User Account against misuse by third parties. If there is reason to suspect that unauthorized third parties have knowledge of the access data, USM must be notified immediately using the contact details specified in section 10.3. All actions using the User’s access data are considered as actions of the User. USM is entitled to block access at any time.
(c) The User is obliged to use the App only lawfully in accordance with this EULA and in compliance with applicable law. In case of conflicts between the EULA and compulsory applicable law the later shall prevail.
(d) The User shall immediately report any malfunctions in the use of the App to the contact point specified in section 10.3.
(e) It is possible that updates or upgrades will be issued from time to time by USM via the App Store or via the offers of designated USM partners or third parties respectively. It may therefore be necessary for (i) the User and Power User to download, update and/or upgrade the App, (ii) for the Power User to update and/or upgrade the firmware contained in the App Product and/or (iii) for User and Power User to update and/or upgrade third-party software in order to continue to use the App and/or the App Product. The use or continued use of the App and/or the App Product may be dependent upon downloading, updating and/or upgrading the App, the software contained in the App Product and/or third-party software. The User, or the Power User respectively, is obliged to install any updates and/or upgrades at the latest upon notification in the App.
(f) Insofar as User data is necessary or generated when using the App in a personalized way, the User is solely responsible for backing up the corresponding data on his/her device, including the data stored in the App or on related IT infrastructure. Section 6 also applies to such data.
6. Exclusion of warranty
USM provides the App "as-is" and "as available" without any representation that it will achieve any particular objectives and without representations or warranties of any kind. The User’s downloading, installation and use of the App is solely at his/her own risk and peril. Both USM and the App Store Operator hereby disclaim any and all warranties (both implied and express) with respect to the App in its entirety, and make no other promises, guarantees or representations (implied or express) of any kind with respect to the App. In particular, USM and the App Store Operator do not warrant (non-exhaustive list) that:
(a) the App will operate or be available at any time without error, interruption or delay, or that errors will be corrected, due to the characteristics of the Internet and other technologies;
(b) an error-free use of the App is given or possible at any time;
(c) the download, the installation and the use of the App will not lead to losses, data damages, attacks by third parties, infestation with viruses or other malicious software, unwanted interferences, hacking or other security-relevant disturbances (e.g. reading or changing of data by third parties).
7. Liability and indemnity
(a) Subject to gross negligence or intent, USM excludes all liabilities arising under any legal theory for any damages incurred by the User.
(b) Any liability of USM for possible direct or indirect damages of any kind incurred by you or third persons, is, as far as legally permissible, fully excluded. The liability for auxiliary persons or consulted third parties of USM is, as far as legally permissible, completely excluded and is therefore waived by the User. In particular, USM is not liable for:
(i) direct or indirect losses, consequential losses, loss of profits, loss of use, loss of earnings or unrealized savings in connection with the use, functionality or availability of the App, the interaction of different users or parties in connection with the use of the App, the modification or termination of the App as well as the availability of App Product and the content deposited in the App Product;
(ii) damage to technology and losses due to malware, spyware or similar software, loss of data and losses due to operational/production interruptions of any kind or interference by third parties or faults during data transmission over the internet or Bluetooth (e.g. hacking, phishing or data loss);
(iii) damages resulting from a violation of general duties of care by the User (e.g. by careless use of the password) or weaker security settings for the User Account set up by the User (e.g. saving of login credentials);
(iv) stored data or any content deposited in any App Product by the User, including data or content that has illegal content, is illegal or is used illegally or improperly by the User and/or third parties;
(v) damages caused by a person in possession of the Admin Card or with access to a Power User Account opening the App Product without authorization of the User that has locked the respective App Product;
(vi) damages caused by data protection violations by other Users or Power Users (see section 8(d)), for example in relation to email addresses or log data;
(vii) damage or other inconvenience or expense resulting from the incompatibility (inconsistency) of the App with the User’s system or operating environment, including hardware, operating systems, third-party software, peripherals or networks or the User's settings or defective maintenance of devices or systems employed for the use of the App.
(c) The User shall be liable to USM and fully indemnify USM for all damages caused by the User’s unauthorized use of the App or by any third party's unauthorized use of the App installed on the User’s mobile device.
8. Data protection
(a) USM and its designated partners may collect and use technical data and related information - including but not limited to technical information about your mobile device, system and application software, and peripherals - that is gathered periodically to facilitate the provision of software updates, product support, and other services to the User (if any) related to the App. USM or any of its designated partners may use this information, as long as it is in a form that does not qualify as personal data under applicable data protection laws, to improve its products or to provide services or technologies to the User.
(b) USM and its designated partners may collect and use in particular personal data that is necessary to identify Users and Power Users, as well as data regarding the use of the App Product.
(c) Supplementary information on the collection, processing and use of personal data by USM can be found in the privacy policy [https://www.usm.com/en/office/legals/privacy-policy]. The privacy policy may be amended from time to time, in particular if we change our data processing practices or if new legislation becomes applicable. We actively inform the Users of such changes in the event of significant changes. If the User disagrees with the change of the privacy policy, the use of the App is prohibited and this EULA will automatically be terminated according to section 9(b).
(d) Where Power Users or Users collect and use email-addresses for identification purposes (see section 2(c)(ii)-2(c)(iii)), or where Power Users collect and use log data for their own analyses (see section 2(b)(ii)), they are solely responsible for complying with all requirements of applicable data protection laws. In particular, any personal data so collected may not be processed for purposes other than those described in section 2 and may not be disclosed to third parties.
9. Term and termination of the user relationship / discontinuation of the service
(a) The contractual relationship under this EULA begins with the activation of the User Account by USM and is effective until terminated by the User or USM.
(b) The EULA may be terminated by the User or USM at any time with immediate effect. If the User rejects to consent to the EULA (as amended from time to time) or disagrees with a change of the privacy policy (as amended from time to time), this EULA is automatically terminated and the User will not be able to use the App any longer.
(c) Upon termination, the User Account will be deleted. USM will delete personal User data according to the privacy policy [https://www.usm.com/en/office/legals/privacy-policy].
(d) Upon termination, the User is obliged to delete the App from his/her Mobile Device.
10. Miscellaneous
10.1. Changes
USM reserves the right to change, amend or replace the EULA at any time and to update, upgrade and add new as well as additional features to the App or discontinue individual features at its sole discretion. However, USM is not obligated to provide for any updates or upgrades in any case. Information about changed terms and conditions of the EULA or features will be provided via the App and will require the User’s consent to the new terms and conditions of the EULA. Without renewed consent to the revised EULA, the use of the App is prohibited and this EULA will automatically be terminated according to section 9(b).
10.2. Access to the App from abroad
By using the App abroad, the law of the jurisdiction in which the User is or has been staying may apply. It cannot be guaranteed that the information and functions contained in the App are usable abroad. Neither can it be guaranteed that the App per se and/or its use abroad is lawful. The use of the App is also abroad at the User’s own and sole risk.
10.3. Contact
(a) Any questions, complaints or claims by the User regarding the App may be submitted:
– via email to [email protected]
– via phone at +41317207272
(b) General contact details: USM U. Schärer Söhne AG, Thunstrasse 55, 3110 Münsingen, Switzerland.
10.4. Severability
If individual provisions of this EULA including this provision are invalid in whole or in part, the validity of the remaining provisions or parts of such provisions shall not be affected. The invalid provision shall be replaced by the respective statutory provisions. The same applies to any contractual gaps.
10.5. Governing Law and Place of Jurisdiction
(a) This EULA and any dispute, controversy or claim arising out of or in connection therewith are subject to Swiss law, under exclusion of the provisions on the conflict of laws and of the Vienna Convention on the International Sale of Goods (CISG). Section 10.5(b) remains reserved.
(b) Despite the choice of law made under section 10.5(a), those provisions of the country in which a User who is a consumer is domiciled shall remain applicable in the area of the European Economic Area pursuant to Art. 6 Rome I Regulation, which may not be deviated from by agreement in the respective national law.
(c) For actions brought by consumers domiciled in the European Union, Great Britain, Switzerland, Norway or Iceland, their place of residence or the registered office of USM shall be the place of jurisdiction, and for actions brought against such consumers, the court at the place of residence of the defendant shall have jurisdiction. In all other cases and subject to applicable compulsory law to the contrary, the registered office of USM is the exclusive place of jurisdiction.
11. Additional terms and conditions applicable for iOS Users
11.1. Acknowledgement
USM and the User acknowledge that the present terms and conditions are concluded between each other, and not with Apple, and that USM, not Apple, is solely responsible for the App and the content thereof. In the event of conflict between this EULA and the applicable AppStore Terms of Service, the applicable AppStore Terms of Service shall prevail.
11.2. Scope of License
The license granted to the User for the App is limited to a non-transferable license to use the App on any Apple-branded Products that the User owns or controls and as permitted by the Usage Rules set forth in the AppStore Terms of Service, except that the App may be accessed and used by other accounts associated with the purchaser via Family Sharing or volume purchasing, if applicable.
11.3. Maintenance and Support
USM is solely responsible for providing any maintenance and support services with respect to the App, as specified in this EULA, or as required under applicable law; i.e. in case of conflicts between the EULA and compulsory applicable law the later shall prevail. USM and the User acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App.
11.4. Warranty
USM is solely responsible for any product warranties, whether expressed or implied by law, to the extent not effectively disclaimed. In the event of any failure of the App to conform to any applicable warranty, the User may notify Apple, and Apple will refund the purchase price for the Licensed Application to that User. To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be USM’s sole responsibility.
11.5. Product Claims
USM, not Apple, is responsible for addressing any claims of the User or any third party relating to the App or the User’s possession and/or use of the App, including, but not limited to: (i) product liability claims; (ii) any claim that the Licensed Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection, privacy, or similar legislation.
11.6. Intellectual Property Rights
USM and the User acknowledge that, in the event of any third party claim that the App or the User’s possession and use of the App infringes third party’s intellectual property rights, USM, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
11.7. Legal Compliance
The User must represent and warrant that (i) he/she is not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a "terrorist supporting" country; and (ii) he/she is not listed on any U.S. Government list of prohibited or restricted parties.
11.8. Third Party Terms of Agreement
The User must comply with applicable third-party terms of agreement when using the App.
11.9. Third Party Beneficiary
USM and the User acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of the terms and condition in this section 11, and that, upon the User’s acceptance of the EULA, Apple will have the right (and will be deemed to have accepted the right) to enforce the EULA against the User as a third party beneficiary thereof.